Timothy H. Smith

Timothy H. Smith, Associate

NY Commercial Division Blog

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Patterson Belknap’s Commercial Division Blog covers developments related to practice and case law in the Commercial Division of the New York State Supreme Court.  The Commercial Division was formed in 1993 to enhance the quality of judicial adjudication and to improve efficiency in the case management of commercial disputes that are litigated in New York State courts. Since then, the Division has become a leading venue for judicial resolution of high-stakes and every-day commercial disputes.  This Blog reviews key developments in the Commercial Division, including important decisions handed down by the Commercial Division, appellate court decisions reviewing Commercial Division decisions, and changes and proposed changes to Commercial Division rules and practices.  Our aim is to provide you with thoughtful and succinct analysis of these issues. The Blog is written by experienced commercial litigators who have substantial practices in the Commercial Division.

First Department Clarifies Circumstances Under Which Acknowledgment of a Debt Will Toll Limitations Period for Action to Recover on a Promissory Note

by Timothy H. Smith and Muhammad U. Faridi on April 13, 2021

In Hawk Mountain LLC v. RAM Capital Group LLC, the First Department held that, under New York General Obligations Law (“G.O.L.”) § 17-101, an acknowledgment of a debt tolled the limitations period for an action to recover a debt owed on a promissory note, even though the acknowledgment did not specifically mention the note at issue or the precise amount due on the note. This decision clarifies that “there is no requirement that an acknowledgement of a debt pursuant to [G.O.L.] § 17–101 leave no room for doubt as to the nature and quantum of the debt to be acknowledged.”

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Commercial Division Dismisses Commercial Tenant’s Complaint Seeking to Rescind or Terminate Lease and Avoid Rent Obligations

by Timothy H. Smith on March 15, 2021

Recently, in Valentino U.S.A., Inc. v. 693 Fifth Owner LLC, Justice Andrew Borrok of the New York County Commercial Division dismissed a complaint brought by Valentino U.S.A., Inc. (“Valentino” or “Tenant”), which sought to rescind or terminate the commercial lease for its Manhattan luxury fashion store and to avoid its rent obligation.

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Takeaways From 4 NY Virus-Related Tenant Contract Rulings

by Muhammad U. Faridi, Jason T. Polevoy and Timothy H. Smith on December 23, 2020

Over the past several months, many disputes have arisen over whether the COVID-19 pandemic or government responses to it provide, depending on the jurisdiction, an impossibility or impracticability defense for nonperformance under a contract. Now, we are beginning to see a flood of decisions addressing that defense.

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Court of Appeals Holds Bankruptcy Law Does Not Preempt Lender’s Tortious Interference Claims Against Third-Party Non-Debtors

by Becky Armady, Timothy H. Smith and Muhammad U. Faridi on December 17, 2020

In Sutton 58 Associates LLC v. Pilevsky, the New York Court of Appeals recently held in a 4-3 split decision that, under certain circumstances, bankruptcy law does not preempt a lender’s state law claims against third-party non-debtors for tortious interference with a contract between the lender and the debtor.  This decision preserves a state forum for lenders asserting claims that: 1) involved “wrongful conduct by non-debtor defendants that occurred prior to the bankruptcy proceeding,” and 2) are “grounded in independent contractual obligations."

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Commercial Division Dismisses Petition to Dissolve LLCs Based on Broadly Stated Purpose Provision

by Timothy H. Smith on October 7, 2020

In Lazar v. Attena LLC, Justice Andrea Masley of the New York County Commercial Division granted Arik Mor and Uriel Zichron’s (together, “Respondents”) motion to dismiss a petition to dissolve three limited liability companies, Attena LLC, Hemera LLC, and Nessa LLC (collectively, the “LLCs”).  The Court’s opinion addressed whether the LLCs should be dissolved on the ground that they were no longer functioning in accordance with their stated purpose, which was defined broadly to include “any lawful business purpose.”

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2 NY Contract Cases Highlight Limits Of Impossibility Defense

by Muhammad U. Faridi and Timothy H. Smith on September 24, 2020

A common question in the wake of the COVID-19 outbreak has been whether the pandemic or governmental responses to the pandemic provide, depending on the jurisdiction, an impossibility or impracticability defense for nonperformance under a contract.

The answer to that question will, of course, turn on the facts underlying the nonperformance, as well as the law of the jurisdiction. Two recent decisions from New York are instructive on the contours of the defense of impossibility — the relevant defense under New York law.

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